The noble Judge cited a case in Chancery of a cessio bonorum in Holland, which is held a discharge in that country, and said, that it had the same effect here. The counsel gave up opposition to the rule on the authority of Burrows v. Jemino. (a) So, where a bill was given by the defendant to the plaintiff, both being resident in America, drawn upon a person in London by the defendant, which was protested in England for non-acceptance, and the drawer afterwards became bankrupt, and obtained a certificate according to the law of the United States; the Court were perfectly clear, that the case came within the established principle upon the subject, that where the debt and certificate unite in the same country, the latter will operate as a discharge: (6) But if the debt arise in this country, and the certificate relied on be under the Great Seal of Ireland, the courtesy of nations ceases, and the debtor shall not evade payment by seeking protection under the laws of a foreign country. (c) So, where the plaintiff was resident in England, and the defendant at Hamburgh, where the latter had obtained a discharge by certificate from his debts, on a rule to show cause why an exoneretur should not be entered on the bail-piece, the Court refused the application, by reason of the plaintiff's domicile in England (d); for it must be a very clear case to induce an interference (a) Co. B. L. 464. Ballantine v. Golding. See 4 T. R. 182. Hunter v. Potts. 4 B. &. A. 654. Lewis (6) 5 East, 123. Potter v. Brown. (c) 2 H. Bl. 553. Quin v. Keefe. v. Owen. 5 Moore, 331. Bamfield v. Anderson. (d) 8 T. R. 609. Pedder v. M'Master. in this summary way. (a) Again, a discharge under the law of Maryland was pleaded to assumpsit for goods sold, to which the plaintiffs replied, that the causes of action, &c. severally occurred to the plaintiffs within this kingdom of England, upon which there was a demurrer, which was allowed; and Lord Kenyon stated broadly; that the Court could not say, that a contract made in one country was to be governed by the laws of another. (b) And Lord Talbot's opinion, when at the bar, is cited to intimate, that a certificate here would not bar a debt contracted in the West Indies, although a commission here will reach a bankrupt's effects there. So that a suit commenced against him at Barbadoes, or the other plantations, might, under these relations, be successful. (c) Yet, where a planter at Demerara shipped sugars to a mercantile house here, and drew bills for payment, and a commission afterwards issued against the firm, under which one of the members obtained his certificate, such certificate was considered to be a bar in Demerara against a suit by the planter. (d) Determinations on these subjects in Scotland, have proceeded upon a similar principle, the locality of the contract. As, if a debt were payable here, or the instrument executed here, and made payable here, it would be considered an English debt, and the English certificate would be held a bar, and vice versa. (e) So, (a) 2 H. Bl. 554. per Eyre C. J. (d) Buck. 56. Godwin v. Forbes. (e) Cullen's B. L. 398. citing Rochead v. Scott. What debts are dis where the bankrupts were natives of Scotland, and traded both there and in England, and committed an act of bankruptcy in the latter country, on which a commission issued there, the Lords of Session held, that all the bankrupt's personal property in Scotland passed over to the assignees; so that the Scotch creditors could have the full benefit of the English commission, and they refused a sequestration, which is in the nature of a commission of bankruptcy. (a) By 5 G. 2. c. 30. s. 7. it is declared, with reference to the provisions of the act, that every such bankrupt shall charged by certificate. be discharged from all debts, by him, her, or them due or owing at the time that he, she, or they did become bankrupt. And by 46 G. 3. c. 135. s. 2., debts contracted be tween the act of bankruptcy and the date of the commission may be proved by bona fide creditors, provided they be unacquainted with any prior act of bankruptcy. It has been said by Lord Hardwicke, that the privileges of creditors to come in, and bankrupts to be discharged from debts, are co-extensive and commensurate. (b) It seems, however, that this rule will not apply to costs due after bankruptcy, nor to debts due to the Crown. (c) It is not our province here to remark upon the possible failure of nearly all general principles which refer to matters of complexity and extensive research, but it (a) 1 Rose, 462. Royal Bank of Scotland v. Cuthbert. 2 Chr. B. L. 489. 4 B. & A. 655. (b) 1 Atk. 119. (c) See 1 Chr. B. L. 361. may be safely asserted, that all debts proved or proveable under the commission, will be barred in this manner. debts. The 10 Ann. c. 15. s. 3. provides, that the certificate Joint and of the bankrupt shall not discharge his partner or co- separate obligor: but the bankrupt himself is freed from all joint and separate debts. As, where the plaintiff was a separate creditor, and had arrested the defendant, who had obtained his certificate under a joint commission, the Court discharged him on common bail, for the plaintiff might have come in under the joint commission. (a) However, in conformity with the statute, it has been decided, that the signature of creditors to the certificate of surviving partners does not by any means release the estate of deceased partners. (b) It is a very general rule, that whatever debts may be proved under the commission are discharged by the certificate, and the reader may, on that account, be referred with great propriety to the various treatises on bankrupt laws for information on the subject of proveable debts. (c) Some particular cases, nevertheless, shall be introduced here for the purpose of elucidating the generalnature of this benefit. Thus, debts due in different rights may be avoided. Debts by As where a legacy of 50l. vested in an executor, who different! became bankrupt, it was held, that his certificate had tives, &c. representa (a) 2 Str. 995. Howard v. Poole. Strahan. 1 Atk. 67. Twiss v. Massey. parte Yale, cited note (a.) Cullen, 474. Id. 1157. Wickes v. (6) 1 Mer. 570. Sleech's case in Deoaynes v. Noble. (c) See Cullen, chap. iii. chap. xii. Christian, passim. Cooke, chap. vi. Whitmarsh, made him a new man, and a bill filed by the legatee was dismissed. (a) So debts due from the wife, dum sola, are barred by the husband's certificate, since they become his incumbrances upon the marriage. (b) So, a bankrupt cannot be sued in debt for rent accrued subsequent to the bankruptcy and commission, for the action is founded on privity of estate, and the assignment under the commission is virtually with the assent of the lessor. (c) But upon a distinct, detached, collateral, independent covenant and contract, the party will still remain liable; for, it is not a covenant that runs with the land, and damages arising from the breach of it cannot be proved under the commission. (d) For there is a distinction clearly established between debt and covenant in such cases; in the one case there is only the privity of estate, in the latter the privity of contract is obligatory; and, consequently, the bankrupt is liable in covenant for rent. (e) And so he is upon an agreement to pay rent during the tenancy (ƒ): but all these authorities are to be read carefully with the subsequent statute 49 G. 3. c.121. s. 19., by which it is enacted, that bankrupts entitled to leases, or agreements for leases, and delivering up the same to (a) Co. B. L. 460. Walcot v. Hall. 2 Bro. 305. S. C. (b) 1 P. Wms. 249. Miles v. Williams, and see 1 Chr. B. L. 485. (c) Barnes, 61. Cantrel v. Graham. 1 H. Bl. 437. n. Wadham v. Marlowe. (d) 4 Burr. 2439. Mayor v. Steward, and see 1 T. R. 90. Ludford v. Barber. (e) 1 H. Bl. 433. Mills v. Auriol, affirmed on error brought in K. B. 4 T. R. 94. (f) 8 East, 311. Boot v. Wilson. |